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Cycling and the law: Martin Porter QC interview with Cyclist Magazine

In an interview with Cyclist Magazine Martin Porter QC discusses road safety, public perception, and why the law doesn’t always work for cyclists

Cyclist: In the wake of the Charlie Alliston ruling, do you believe there is any grounds or benefit in introducing into law an offence of causing death by careless or dangerous cycling?

Martin Porter QC: I am rather agnostic about the proposed introduction of causing death by dangerous or careless driving offences.

Such deaths are so unusual that the changes would be of tiny practical significance and would not be remotely likely to save a single life. It is unlikely that even Alliston would have been convicted of either proposed offence as the tragic death of Mrs Briggs related not to his manner of riding but to his breach of Construction and Use Regulations.

I would prefer that limited resources are put into enforcement of existing law especially against those who present greatest danger, as exemplified by the West Midlands police force close pass initiative.

Cyc: Do you see a problem in the media’s depiction of cyclists as a major risk on the roads, given the statistical insignificance of injuries caused by cyclists?

MP: The media have a lot to answer for, even if they aren’t themselves going out of their way to demonise cycling. They are, however, encouraging the type of negative comments you see below many articles on cycling by posing certain provocative content.

Those comments are depressing but also an indication of what a significant proportion of society, the society which drives vehicles and makes up juries, think about cyclists and the way they should behave.

Cyc: Are you disillusioned by the application of justice for the protection of cyclists?

MP: Well I think there’s a big problem with motorists getting too much sympathy from a jury that is derived from their motoring peers. There are clear difficulties in getting juries to convict motorists that haven’t done anything intensely bad. They haven’t set out to kill or injure anyone but haven’t really set out to try their hardest not to kill or injure somebody.

Very often results in front of juries are very disappointing, and that puts the CPS [Crown Prosecution Service] off bringing cases to court, because it’s an expensive process and if cases don’t succeed it’s demoralising.

The jury system works very well when the defendant who is being tried is being charged with an offence which everyone agrees is morally reprehensible – theft or fraud or sexual abuse. In a case of careless driving like the death of Michael Mason, they can just be too sympathetic. They think, “that could have happened to me…”

MP: The court’s approach to bans is all wrong. The courts have kept saying very long bans are very difficult to enforce. They claim there is a temptation of someone with a long ban to keep driving regardless, and so it just brings the law into disrepute when they do so.

Someone might be expected to refrain from driving for six months, a year, maybe in some cases two or three years, but they can’t be expected to carry on not driving for 10 or 20 years. But I think that’s the wrong approach.

Driving is just a privilege rather than a right. People who use aggression behind the wheel just demonstrate themselves to be no more capable of driving responsibly than someone who is blind or has epilepsy. Some people should not be driving.

Cyc: Do you think there is an issue of drivers being let off even short driving bans as a result of pleading ‘exceptional hardship’?

MP: There’s a massive industry of lawyers out there who can almost guarantee getting a convicted motorist out of losing their license, for a price.

It’s easy for a lawyer to present the client as in hardship: “How am I going to get to work or get the kids to school?” And this is all premised on the assumption that the courts share that you can’t live a normal life without the ability to drive around. There are lots of people driving around with well over 12 points on their license.

It’s big business for these lawyers. It’s a fairly scandalous state of affairs.

Cyc: Why does the UK have such a poor legal framework to protect cyclists, historically speaking?

MP: I would argue that the legal framework really isn’t that bad, it’s the fact that it goes unenforced. For the most part our society has developed the attitude that any law breaking committed inside a motor vehicle doesn’t really count, so things like speeding are rife.

Every survey that’s been performed suggests at least 50% of motorists will admit to speeding. In the same way they’re not used to being taken up on driving without due care or even driving dangerously.

Cyc: Do you think the law is the most important means of improving the experience and safety of road cycling?

MP: Well I think it’s part of the solution. I wouldn’t be a lawyer if I didn’t think the law was important and capable of improving society. I’m very well aware that there are people who say that the law is irrelevant and it’s got to be infrastructure and anything else is a waste of time and effort. But I don’t’ see it as black and white as that.

I think it comes down to attitudes too. I think law sometimes can lead attitude. But more obviously and directly, attitudes shape the law because those laws are made by our elected representatives.

Cyc: Most of Europe employs ‘strict liability’ laws for road traffic. Do you think it would help attitudes and cycling safety if it were introduced in the UK?

MP: There are so many variants of strict liability that it’s difficult to be certain when someone is proposing strict liability what exactly it is they’re proposing.

Some want it in criminal cases, where there is a presumption of responsibility on the larger vehicle [a driver is presumed responsible in a collision with a cyclist, and a cyclist presumed responsible in a collision with a pedestrian], which is never going to happen as it just bangs up against the human right to be presumedinnocent until proven guilty.

On a civil front in terms of compensation it would be possible, but it’s still a presumption, so it always leaves open the opportunity for the motorist to say the cyclist was irresponsible and at fault. So in that case we haven’t moved very far from the system we’ve already got.

I would be happy to see strict liability, but I think it’s something that would have enormous resistance from a motoring public and I wonder if our efforts could be better employed.

Cyc: In that case, what would your solution be for laws to better protect cyclists?

MP: Getting better enforcement of criminal laws. I’d much rather that the collisions didn’t happen in the first place, rather than altering the way we sweep up afterwards. I don’t think there’s any good evidence that people will drive more carefully because they think ahead to the insurance claims.

I think the good evidence is that people will drive more carefully because they know that if they don’t there will be criminal consequences. So if we’re looking at deterring bad driving I think the criminal law is the way to go and, for reasons I’ve explained to you, you can’t use strict liability for criminal cases.

Cyc: Do you think infrastructure can play a part in fixing this?

MP: Along the Embankment [in London] is the prime bit of separate cycling infrastructure probably in this country. It was driven through by Boris Johnson. No matter what everyone thinks about his politics and his personality, he was very driven as a cyclist. People are going to be far more motivated to jump on Boris bikes and take journeys they would previously have taken by car or taxi, so it’s a very positive development.

It doesn’t, though, detract from the fact that cyclists need very good legal protection on all roads. Nobody in the foreseeable future is going to be able to make an entire trip solely on segregated infrastructure so we do need the rule of law on the roads that is going to protect and recognise cyclists as the vulnerable road users they are and provide them with adequate protection.

Cyc: Do you think there is a risk that by building more infrastructure for cyclists, there will be more political pressure forcing cyclists to use it?

MP: Well, bear in mind that the last time the Highway Code was revised it was proposed that cyclists “should” use cycling infrastructure, so you would therefore be in breach of the Highway Code if you didn’t.

It was only fairly vigorous work by the CTC, as Cycling UK then called themselves, who persuaded the Minister of Transport to tone it down to what it currently says – that use of infrastructure depends on your experience and it “may” make your journey safer.

Cyc: Does the Highway Code need to be updated to better cater for modern cycling?

MP: Yes. The Highway Code has no recognition of bikeability and what cyclists are taught to do.

It’s due for an update, but the Department of Transport has put it on hold. I’ve heard, informally, that this is because the entire Government is just too busy with Brexit. In other words, the whole Brexit process has paralysed the normal routine government.

Some things do need to change. The emphasis in the Highway Code on what cyclists should wear really needs to be revisited.

Cyc: From a legal perspective, what power does the Highway Code law have over road users?

MP: Well, it’s drafted by the Department of Transport and approved by Parliament and though it doesn’t set down what the law is, it is something that can be taken into account in any court which is seeking to establish whether someone is careful or competent.

It does set out what is mandatory through other legislation. So when you see that something “must” be done in the Highway Code that’s because there’s some statute or statutory implement somewhere which says they must.

If it says “should”, that’s just the recommendation put into the Highway Code which may be taken into account by anyone who has the responsibility of determining whether someone has cycled badly or driven badly.

A classic example is the cycle helmet. Although the police have a sorry history of trying to do this, you can’t pull someone over for not wearing a helmet. But if you suffer a head injury and you’re not wearing a helmet it gives the defendant an opportunity to say you haven’t been compliant with the Highway Code, therefore you have been contributory negligent, therefore your damages should be reduced.

Cyc: Do you drive a car?

MP: Yes, I do. But I’ve never had the slightest difficulty sharing the road with cyclists, I’ve never had the slightest problem waiting for a time to pass them safely without causing them any anxiety.

I’ve always struggled to understand why there are so many motorists out there who apparently have such great difficulty behaving themselves around cyclists.